IP Law Daily, COPYRIGHT—11th Cir.: Artist failed to show access to original, striking similarity of alleged infringer’s artwork, (Aug 19, 2024)

By Patricia K. Ruiz, J.D.

Though both pieces included a banana and duct tape, the inclusion of an orange in the defendant’s work defeated the plaintiff’s striking similarity argument.

The U.S. Court of Appeals for the Eleventh Circuit affirmed a grant of summary judgment by the U.S. District Court for the Southern District of Florida in favor of an artist accused of copyright infringement. The Eleventh Circuit found that the plaintiff failed to put forth sufficient evidence to create a jury issue on whether the defendant had access to the allegedly infringed artwork and that the plaintiff did not meet the high standard for striking similarity (Morford v. Cattelan, No. 23-12263 (11th. Cir. Aug. 16, 2024)).

Background.Joe Morford, a visual artist from Canada, created a work in 2001 that he titled Banana & Orange. The work depicts a banana and an orange that have been taped against a green background by a single piece of duct tape. Mauricio Cattelan, an Italian artist, created his own fruit-and-gravity based work, entitled Comedian. That work, which he created for the Art Basel Miami art fair in 2019, contains only a single banana attached to a wall with a piece of duct tape.

Morford sued Cattelan, contending that he had recreated, and thus purloined, the banana component of his 2001 work. The court denied the Italian artist’s motion to dismiss, finding that Morford had adequately alleged access and substantial similarity. Cattelan moved for summary judgment once discovery was concluded. The court granted summary judgment in favor of Cattelan, finding Cattelan created his work independently and without access to Morford’s work.

Appeal. On appeal to the Eleventh Circuit, Morford argued that because he can demonstrate striking similarity between the two pieces, he was not required to proffer evidence of access to show copyright infringement. Alternatively, he argued he can show substantial similarity and that Cattelan had a reasonable opportunity to access Banana & Orange because it was widely disseminated and readily discoverable online.

Access. The Eleventh Circuit agreed with the district court that Morford did not put forth sufficient evidence to create a jury issue on whether Cattelan had access to Banana & Orange. Circuits have adopted a “widespread dissemination” standard, which requires that a plaintiff show that the work has enjoyed considerable success or publicity, and the Eleventh Circuit found Morford failed to meet this standard. The mere availability of Morford’s piece on the internet, without more, is too speculative to find a nexus between Cattelan and Morford to satisfy the factual copying prong of his infringement claim.

Striking similarity. Further, the Eleventh Circuit agreed that Cattelan’s Comedian did not meet the high standard for striking similarity, which exists where the similarity in appearance between two works is so great it precludes the possibility of coincidence, independent creation, or common source. Morford asserted he established striking similarity based on the same two incongruous items being chosen, grouped, and presented in the same manner within both works; however, even identical expression does not necessary constitute infringement, the court found. Though the use of the same two incongruous items—a banana and duct tape—are similar, there are sufficient differences in the two displays to preclude a finding of striking similarity, the court determined.

The Case is No. 23-12263.

Judge: Per curiam.

Attorneys: Joe Morford, pro se. Adam M. Cohen (Kane Kessler, PC) for Maurizio Cattelan.

Cases: Copyright AlabamaNews FloridaNews GeorgiaNews GCNNews